ࡱ> bgag ;bjbjVV .Zr<r<2228T,,K0XXnnn///////$-24//nnH0@nn//,.n|%vN-/00K0f-\i5l:i50.i5.//K0i52 R: Anthony Sheldons submission to the 鱨վ on the Inquiry into age assessment in people smuggling cases Introduction This submission is based on the issues raised by the 鱨վ Discussion Paper Inquiry into age assessment in people smuggling cases dated December 2011. This submission is not intended to be an exhaustive evaluation of all factors contributing to the issue of age assessment in people smuggling cases. Rather, it is intended to address some of the questions (wholly or in part) that have been identified by the Discussion Paper. Only questions that were deemed to be particularly relevant to the authors expertise and experience have been addressed with the intention of providing some insight that may contribute to the Inquiry process. Background I am a Queensland Lawyer who has been retained in the defence of a number of Indonesian people smugglers over the last eight months. I have been engaged primarily in matters where these Indonesians have claimed to be minors. My role has been to gather evidence in Indonesia of each clients age by taking affidavits from family and village members as well as procuring official documentation. Several clients have been from the Indonesian island of Roti and most from the Nusa Tenggara Timur area of Indonesia. My previous experience in this area and fluency of Indonesian language and dialects has allowed me to utilise former contacts to efficiently visit and gather evidence. The Australian Indonesian Consular General has granted me a year-long multiple entry visa to allow this work to continue unimpeded with the permission and cooperation of the Indonesian Government. Most of the clients who have been released have expressed an intention to pursue civil claims for compensation in the Australian jurisdiction. For the purposes of this submission I shall avoid revealing their names and speak only generally of their circumstances so as not to influence the outcome of these pending legal proceedings. I am also involved with several other pending criminal trials concerning Indonesian minors who have been convicted and are currently serving sentences in adult prisons. New evidence regarding their age has been procured and will be produced to the courts. Their identities and circumstances will also be protected for the same reason. Questions addressed from the 鱨վ Inquiry into age assessment in people smuggling cases, Discussion Paper December 2011 7 How many individuals suspected of people smuggling offences say that they are children and how long have they been in detention? In a meeting in Canberra on 14th December 2011 between Australian legal representatives and Indonesian Government officials the Indonesian Ambassador Mr H.E. Primo Alui Joelianto presented a paper stating that there had been 153 Indonesians to date who had been detained in Australia who claimed to be minors. 8 Are there cases where individuals suspected of people smuggling offences were acknowledged to be children after being held in adult correctional facilities? and 9 Why do age assessment processes raise human rights concerns? 9.1 Incorrect age assessment may lead to significant human rights breaches A client N claimed to be a minor from the moment he was detained by Australian authorities. Assessed by x-ray examination to be 19, he was later proven to be a child. This client exhibited alarming displays of trauma by being largely non responsive to questions and conversation even after being released. The only time this pattern of behaviour was broken was when N was asked if he had suffered sexual abuse while in detention at which time N broke down into uncontrollable sobbing. Another case involved an Indonesian child D who was beaten for claiming to be underage. Ds claim was viewed by his other crew members who wished to be detained together, as a betrayal of solidarity. D was beaten on two separate occasions by his adult companions while in adult detention and experienced difficulty sleeping. D was eventually placed in juvenile immigration detention but was later joined by a majority of adults at this facility. He was subsequently released after being detained in total for 17 months. 12.2 Focused age interviews The Australian Government has announced that the AFP will be offering focused age interviews, conducted under caution, where age is in dispute as part of the ordinary interview of people suspected of people smuggling offences. The Attorney-General has also indicated that the AFP will contract a consultant with appropriate anthropological, cultural and linguistic expertise to develop guidance material for investigators conducting interviews. The Inquiry is particularly interested in receiving submissions from appropriately qualified experts concerning whether focused age interviews can reliably be used for the purposes of age assessment. Where age determination is an issue, suspected people smugglers are currently interviewed before processing. This assessment however seems only to be persuasive in light of other evidence. A client L was interviewed when he was processed after his arrest. A Department of Immigration and Citizenship (DIAC) officer conducted this interview. The officers title was Age Assessment Interview Officer. This officer reported that L was in his assessment, a minor. Following this assessment a wrist x-ray was ordered which, when examined by a Radiologist suggested that statistically, L was over 18. The use of Greulich & Pyles Radiographic Atlas of Skeletal Development of the Hand and Wrist as an accurate method to determine the age of minors has been rebuked worldwide, by Australian and Australasian Radiologists and rejected in recent Australian court decisions. The assessment of the Age Assessment Interview Officer was not, in Ls case sufficient to show L was a minor. The view of the Commonwealth Department of Public Prosecutions (CDPP) in that case was that the x-ray was evidence indicating that L was an adult. No attempt to verify Ls age from Indonesian records, or relatives was made in over 12 months. During this period of detention D was held with adult offenders on remand. These circumstances are the same for several other cases I have been involved with. The effectiveness of such a focused age interview is questionable considering a similar process already occurs where the assessment is given little or no weight. 12.3 Documentary and affidavit evidence of age The Attorney-General has indicated that the AFP is taking steps as early as possible to seek birth certificates and other relevant information from Indonesia about people suspected of committing people smuggling offences. Documentary evidence of age, if it can be verified, is likely to be seen by a court as determinative of age. However, there are significant problems in obtaining documentary evidence in the case of Indonesian nationals who have been charged with people smuggling. Many such individuals will not have a birth certificate. There may be other documents which could be used as evidence of age, including records that might be obtained from local government, schools, police or religious organisations. Affidavit evidence could also be obtained from relatives or community leaders. However, obtaining evidence of this kind will usually require travel to Indonesia. In some recent cases prosecutions of individuals charged with people smuggling offices have been discontinued following the production of affidavit evidence (and in some cases other documentary evidence) regarding age from family members and community leaders in Indonesia. Obtaining this evidence has required defence lawyers to travel to Indonesia. The Inquiry is particularly interested in receiving submissions regarding the use of documentary and affidavit evidence for the purposes of age assessment, including regarding the process of obtaining such evidence and the extent to which such evidence has influenced conclusions drawn by investigating authorities regarding an individuals age. In the case of L mentioned above in question 12.2, a trip to Indonesia was organised and funded by myself and a colleague. This trip was widely publicised as an expedition to gather documentary and affidavit evidence to support the clients claims. In fact this trip was conducted to examine the veracity of the clients claims under the scrutiny of the international media. This trip took four days to complete, where evidence was verified and gathered for three clients. Upon presentation to the CDPP charges were withdrawn and the three clients repatriated. It remains difficult to accept that the AFP had adequately expended all resources of the Commonwealth over 12 months to investigate the age of these children when lawyers achieved this in just four days at their own expense. Indonesian Government sources indicate that there remains at least eight cases where Indonesians who claimed to be minors have been convicted of people smuggling as adults without this process of in country age investigation occurring. I and other colleagues will be re-examining these cases to determine if these Indonesians are indeed children. 13 What other issues are of interest to the Inquiry? The Inquiry has an interest in a number of other issues related to age assessment processes. These include: whether contact has been facilitated between individuals of concern and their parents and guardians what efforts have been made to obtain information about age from the parents or guardians of individuals of concern the process of seeking consent for obtaining x-rays from individuals of concern the preparation and conduct of legal proceedings in which evidence concerning the age of the individuals of concern was provided to the court how decisions were made about where individuals of concern would be detained what measures were taken to provide a guardian or other responsible adult to ensure that the best interests of the individuals of concern would be protected the provision of legal advice, assistance and representation to each of the individuals of concern. Privacy Issues Indonesian Ambassador Mr H.E. Primo Alui Joelianto together with Indonesian Consular and Embassy officials have expressed a concern over their right to visit detained Indonesians claiming to be minors in instances where the child has waived their right to legal and Consular assistance in initial interview process by the AFP and DIAC. The Indonesian representatives have claimed that Australian authorities have refused access to Indonesians claiming to be minors based on privacy laws. It is argued by these authorities that since the prisoner has not given consent to a legal or consular visit, no details of the prisoner, including their claim to be children, can be given to the Consulate. It should be noted that these Indonesians are in their entirety from impoverished backgrounds. Many of these Indonesian children are from villages which use a cashless subsistence based economy. Most of these children would have never met a lawyer or Indonesian diplomat. Their cultural reflex of shame and embarrassment in many cases denies them from inflaming the situation by requesting legal and consular assistance, assuming these children even have knowledge of what this assistance might entail. It would seem that once this offer is denied, these children are left to the investigative efforts of the AFP which have been shown in several examples within this submission not to be as efficient as legal representation. It is acknowledged however that the AFPs difficulties in these investigations may often be hampered by international bureaucracy not suffered by private legal practitioners visiting Indonesia. Lack of a Legal Guardian It would seem important on a more general note to mention the effect of the lack of legal guardianship for the class of children in these cases within Australia. The Immigration Guardianship of 鱨վ Act (1946) appoints the Minister of Immigration legal guardian for all unaccompanied non-citizen children who, under s4AAA(1)(c) of the Act, intend to become a permanent resident of Australia. This of course precludes Indonesian children accused of people smuggling as it is their intention to return to Indonesia. While it is the general international obligation of Australia to protect the rights of the child, the lack of a single accountable position charged with the duty of overseeing these children has resulted in these rights being abrogated. Initiative to rectify the problem of Indonesian children in Australian adult prisons has been lacking in what has become an extremely politicised issue. It is submitted that without a clearly and legally accountable Minister and Department to oversee the wellbeing of these children, they will continue to languish in adult prisons and fall between the cracks in our justice system.     A.Sheldon BA LLB (hons) GradDipLP MQLS :Submission to the 鱨վs Inquiry into age assessment in people smuggling cases.  - PAGE \* MERGEFORMAT 5- (JR 6 7 K L ̾r[G6 h7!hPCJOJQJ^JaJ&h7!hP6CJOJQJ]^JaJ,h7!hP56CJOJQJ\]^JaJ#h7!hZ|CJOJQJ]^JaJ#h7!hPCJOJQJ]^JaJ&h7!hP5CJOJQJ]^JaJhCJ]aJh6CJ]aJh+:56CJ\]aJ h+:h+:56CJ\]aJh+:h+:CJaJhCJaJhCJaJh5CJaJ(RL 2 3 > ? LMOPgdB%M $da$gdd7$8$H$gdP$d7$8$H$a$gd$a$gdgdx$a$gdL N ` 1 2 3 > ? A | > K U b | !(i;a:DohCJaJh=CJaJhY CJaJhl|CJaJhhCJaJhhCJaJhhB%MCJaJhhl|CJaJh7!hZ|5CJ^JaJh7!hl|CJ^JaJh7!hZ|CJ^JaJh7!hPCJ^JaJ2JKLMNOQnnƳ|eP@5hx5CJ\aJh7!h+:5CJ\^JaJ)h7!hB%M56CJOJQJ]^JaJ,h7!hB%M56CJOJQJ\]^JaJ#h7!hB%M5CJOJQJ^JaJ&h7!hB%M5CJOJQJ\^JaJ h5CJOJQJ\^JaJ%h5B*CJOJQJ\aJphh5CJOJQJ\aJh7!hZ|5CJ\^JaJhh5CJaJhCJaJhCJaJ PQnoGKno $a$gdnf$a$gdks$a$gdnfgdxgdnf $da$gdnfgdxd7$8$H$gdB%MgdB%Mno{"TGJKʸʧʧzhVzN@hx56CJ\]aJhxCJaJ#h7!hxCJOJQJ\^JaJ#h7!hnfCJOJQJ\^JaJhx5CJ\aJ h7!hksCJOJQJ^JaJ h7!hnfCJOJQJ^JaJ h7!h oCJOJQJ^JaJ#h7!h?CJH*OJQJ^JaJ h7!h?CJOJQJ^JaJ h7!hq+CJOJQJ^JaJ&h7!hq+5CJOJQJ\^JaJFGijWenݾžݴ~g,h7!hx6B*CJOJQJ^JaJph#h7!hx6CJOJQJ^JaJhxCJaJhx56CJ\]aJhMJ56CJ\]aJhphIAQ\] h u\] h(\]hIAQhIAQ\] hnf\] hIAQ\] h:\] hp\]hsh 56CJ\]aJ!n,-TtuP[Yjtu 5 I V ꫖իիꖁՖlW)h7!h(B*CJOJQJ^JaJph)h7!hB*CJOJQJ^JaJph)h7!hZLB*CJOJQJ^JaJph)h7!hKIOB*CJOJQJ^JaJph)h7!hE9B*CJOJQJ^JaJph)h7!hnfB*CJOJQJ^JaJph)h7!h\eB*CJOJQJ^JaJph)h7!hksB*CJOJQJ^JaJph"V a b z z!{!|!!!""c&ocL5L,h7!hx6B*CJ OJQJ^JaJ ph,h7!hx6B*CJOJQJ^JaJphhxB*CJaJph#hx56B*CJ\]aJph)h7!hxB*CJOJQJ^JaJph)h7!hksB*CJOJQJ^JaJph)h7!hB*CJOJQJ^JaJph)h7!hKIOB*CJOJQJ^JaJph)h7!h\eB*CJOJQJ^JaJph)h7!h(B*CJOJQJ^JaJph z!{!|!!""%''T)U)**N,O,,,W--... & Fgd+:gdx $ a$gdnfgd+:$a$gdgdx$a$gdnfc&&''e(((((()))S)T)a*u*******N,O,ҽ~~~~~i~a]K#hMJ56CJOJQJ\^JaJhph+:CJaJ)h7!h\eB*CJOJQJ^JaJph)h7!ht6B*CJOJQJ^JaJph)h7!hZLB*CJOJQJ^JaJph)h7!hB*CJOJQJ^JaJph)h7!h+:B*CJOJQJ^JaJph,h7!hx6B*CJOJQJ^JaJph,h7!h+:6B*CJOJQJ^JaJphO,,,/// 0#0?000001111!344$4?4r444P5-656\6]6e6g6v6666677-7L77|8м~wrm h%z] hv_] hv_6]hv_hv_6]h%zhv_h\eh 5CJaJhmh(h hMMh([ hkhkhkh%zh%z5CJaJht6h+:6ht6hx6#h+:hx6CJOJQJ^JaJ)h+:hx56CJOJQJ\^JaJ*.// 02]6v6}8::::::::::;;; $Ifgd 7 dgd gdt6 $ a$gdnf & Fgdx|8}889;9j999s:{::::::::::::;;;;;;;;;;;;;;;;;;·yph3 mHnHujhMJUmHnHuh#mHnHuhMJjhMJUh3 hvhMJCJaJhMJhOTCJaJhMJhCJaJ h7!h 7h7!h 7CJaJhxjhxUhk hv_h%z hMM] h:<] h%z] h\e]&;;;;;;;;;xsqljqqa gdt6$a$gd 7kd$$Ifl0f#H t0644 lapyt7!,1h. A!"#$% $$If!vh#v#vH:V l t0655Hpyt7!j 666666666vvvvvvvvv666666>6666666666666666666666666666666666666666666666666hH6666666666666666666666666666666666666666666666666666666666666666662 0@P`p2( 0@P`p 0@P`p 0@P`p 0@P`p 0@P`p 0@P`p8XV~ OJPJQJ_HmH nH sH tH J`J Normal dCJ_HaJmH sH tH DA D Default Paragraph FontRi@R 0 Table Normal4 l4a (k ( 0No List bob xDefault 7$8$H$-B*CJOJQJ^J_HaJmH phsH tH @@@ +: List Paragraph ^m$>@> 0HeaderdB#.!. 0 Header Char> @2> 0FooterdB#.A. 0 Footer CharR@RR MJ0 Balloon Text dCJOJQJ^JaJNoaN MJ0Balloon Text CharCJOJQJ^JaJtst 7 Table Grid7:V0 dPK![Content_Types].xmlN0EH-J@%ǎǢ|ș$زULTB l,3;rØJB+$G]7O٭V$ !)O^rC$y@/yH*񄴽)޵߻UDb`}"qۋJחX^)I`nEp)liV[]1M<OP6r=zgbIguSebORD۫qu gZo~ٺlAplxpT0+[}`jzAV2Fi@qv֬5\|ʜ̭NleXdsjcs7f W+Ն7`g ȘJj|h(KD- dXiJ؇(x$( :;˹! I_TS 1?E??ZBΪmU/?~xY'y5g&΋/ɋ>GMGeD3Vq%'#q$8K)fw9:ĵ x}rxwr:\TZaG*y8IjbRc|XŻǿI u3KGnD1NIBs RuK>V.EL+M2#'fi ~V vl{u8zH *:(W☕ ~JTe\O*tHGHY}KNP*ݾ˦TѼ9/#A7qZ$*c?qUnwN%Oi4 =3N)cbJ uV4(Tn 7_?m-ٛ{UBwznʜ"Z xJZp; {/<P;,)''KQk5qpN8KGbe Sd̛\17 pa>SR! 3K4'+rzQ TTIIvt]Kc⫲K#v5+|D~O@%\w_nN[L9KqgVhn R!y+Un;*&/HrT >>\ t=.Tġ S; Z~!P9giCڧ!# B,;X=ۻ,I2UWV9$lk=Aj;{AP79|s*Y;̠[MCۿhf]o{oY=1kyVV5E8Vk+֜\80X4D)!!?*|fv u"xA@T_q64)kڬuV7 t '%;i9s9x,ڎ-45xd8?ǘd/Y|t &LILJ`& -Gt/PK! ѐ'theme/theme/_rels/themeManager.xml.relsM 0wooӺ&݈Э5 6?$Q ,.aic21h:qm@RN;d`o7gK(M&$R(.1r'JЊT8V"AȻHu}|$b{P8g/]QAsم(#L[PK-![Content_Types].xmlPK-!֧6 0_rels/.relsPK-!kytheme/theme/themeManager.xmlPK-!0C)theme/theme/theme1.xmlPK-! ѐ' theme/theme/_rels/themeManager.xml.relsPK] 3 Z L nnV c&O,|8; !#$%&()+P .;;"'*,!T # @H 0(  0(  B S  ?^223333333G J ''//222222222333333223333333 zw??hDQQN^LĐPhT*& EIuKL?=`.& }Rk.֜R`m@^`OJPJQJ^Jo(^`OJQJ^Jo(o p^p`OJQJo( @ ^@ `OJQJo(^`OJQJ^Jo(o ^`OJQJo( ^`OJQJo(^`OJQJ^Jo(o P^P`OJQJo(^`.^`.pL^p`L.@ ^@ `.^`.L^`L.^`.^`.PL^P`L.^`OJPJQJ^Jo(^`OJQJ^Jo(o p^p`OJQJo( @ ^@ `OJQJo(^`OJQJ^Jo(o ^`OJQJo( ^`OJQJo(^`OJQJ^Jo(o P^P`OJQJo(^`OJPJQJ^Jo(p^p`OJQJ^Jo(o @ ^@ `OJQJo( ^`OJQJo(^`OJQJ^Jo(o ^`OJQJo( ^`OJQJo(P^P`OJQJ^Jo(o  ^ `OJQJo(^`OJPJQJ^Jo(^`OJQJ^Jo(o p^p`OJQJo( @ ^@ `OJQJo(^`OJQJ^Jo(o ^`OJQJo( ^`OJQJo(^`OJQJ^Jo(o P^P`OJQJo(^`OJPJQJ^Jo(^`OJQJ^Jo(o p^p`OJQJo( @ ^@ `OJQJo(^`OJQJ^Jo(o ^`OJQJo( ^`OJQJo(^`OJQJ^Jo(o P^P`OJQJo(^`OJPJQJ^Jo(^`OJQJ^Jo(o p^p`OJQJo( @ ^@ `OJQJo(^`OJQJ^Jo(o ^`OJQJo( ^`OJQJo(^`OJQJ^Jo(o P^P`OJQJo( ^`OJQJo(^`OJQJ^Jo(o p^p`OJQJo( @ ^@ `OJQJo(^`OJQJ^Jo(o ^`OJQJo( ^`OJQJo(^`OJQJ^Jo(o P^P`OJQJo(^`OJPJQJ^Jo(^`OJQJ^Jo(o p^p`OJQJo( @ ^@ `OJQJo(^`OJQJ^Jo(o ^`OJQJo( ^`OJQJo(^`OJQJ^Jo(o P^P`OJQJo( }Rk=`P??zwR`mQN& EIuK ƭPS                 ƭPS        ƭPS        ƭPS        ƭPS        ƭPS                 ƭPS        7#hY sh 3 =Vksj#$q+t6 7+::<?MJB%MKIOIAQRT([v_nfm o%zl|kOT7! upE9 P:ZL \eZ|~!^MMuxxv(5U22@3X@UnknownG*Ax Times New Roman5Symbol3. *Cx Arial7.@ Calibri5. .[`)Tahoma?= *Cx Courier New;WingdingsA$BCambria Math"1h:G:GUQ+\Q+\2022KHX  $Px2!xx o Anthony Sheldon (Submission 26)User Freyana Irani0         Oh+'0h   $ 0 <HPX` Anthony Sheldon (Submission 26)User Normal.dotmFreyana Irani2Microsoft Office Word@@.@P%@P%Q+՜.+,D՜.+,l( hp  $鱨վ\2  Anthony Sheldon (Submission 26) Titleu}      1]iuSubmitter Last NameSubmission TypeSupplementaryPrivacyContact CommentsSubmission numberDate Received Keyword From email address Submitter Salutation Submitter First Name Submitter PositionOrganisation Name IndividualsStatus Comments TemplateUrl xd_ProgID _CopySourceOrderSheldon1NoPublicPh: 0421 929 30226.00000000000002012-02-03T00:00:00Z22;#Documentary evidence;#49;#Discontinuation of proceedings;#14;#Prison;#19;#Age determination interview;#7;#AFP;#26;#Defence;#20;#Indonesian consulateasheldon@worldassist.org.auMrAnthonyLawyerNeeds review$Privacy, lack of a legal guardian.|http://ageassessment/inquiryprocesses/Edited Submissions/AWSheldon Submission 鱨վ Inqu.doc4000.00000000000  !"#$%&'()*+,-/012345789:;<=>?@ABCDEFGHIJKLMNOPRSTUVWXZ[\]^_`cdefijlmnopqrstuvwxyz{|}~Root Entry F|%h@ Data .1Table65WordDocument.ZSummaryInformation(QDocumentSummaryInformation8YMsoDataStore 0i%|%5SBEHCCXIZM1EP==20i%|%Item  PropertiesSDMW0GYUK3AXEQ==2 0i%|%Item  Properties O0AR4ZEGIWBMRRW==20i%|%Item kt:PropertiesB0I4Z4441AYU==20i%|%Item %Properties)UCompObj/r  !"#$&'(*+,-.0 DocumentLibraryFormDocumentLibraryFormDocumentLibraryForm This value indicates the number of saves or revisions. The application is responsible for updating this value after each revision. metaAttributes"/>   F Microsoft Word 97-2003 Document MSWordDocWord.Document.89q